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MTD for improper service?


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Hi:

I received yet another summons and complaint, this time from Palisades Collection. However, service was improper, as they left the summons on my doorstep and left a nasty message on my voicemail (saved of course) saying they had called moments before and I hung up on them. Well, I was 250 miles away that weekend, and the process server was from a city that is 3 hours away AND it was snowing profusely that weekend. So, they obviously were ticked off that they drove 3+ hours one way in terrible icy conditions only to find nobody home. I have all of my receipts to prove my family was out of town at the time of service (hotel, fuel, etc.).

My question is this: do I just file a MTD stating the improper service as my defense and attach copies of my receipts as proof, or do I need to combine my answer with a MTD? My answer is due in four days, but if service was improper, than why would an answer be required?

I did go through this once before with this same exact process server. I had filed my answer and listed the improper service as an affirmative defense. During the pre-trial, the judge ruled that service was improper, but allowed the Plaintiff to file an amended complaint upon proper service.

Thanks in advance for the advice :roll:

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Yes, Colorado is not a "nail & serve" state:

(e) Personal Service. Personal service shall be as follows:

(1) Upon a natural person over the age of eighteen years by delivering a copy or copies thereof to the person, or by leaving a copy or copies thereof at the person's usual place of abode, with any person over the age of eighteen years who is a member of the person's family, or at the person's usual place of business, with the person's secretary, bookkeeper, manager, or chief clerk; or by delivering a copy to an agent authorized by appointment or by law to receive service of process;

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During the pre-trial, the judge ruled that service was improper, but allowed the Plaintiff to file an amended complaint upon proper service.

I believe this is typical, and that is why the consensus opinion seems to be that if you are improperly served, you may as well just file your Answer as if you were properly served, and fight the battle of the underlying debt, and not fight the battle of improper service.

And you're better off doing that than ignoring things and then attempting to vacate a default judgment due to improper service. Because all that happens if you successfully vacate a default judgment is that you now get to file an Answer.

I know it's not fair, but I don't think there's much to do about it, unless there's some body which will accept complaints about process servers.

Good luck,

DH

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